Sabey Rule Blog

Parker v Felgate

By July 6, 2017 No Comments

My friend and colleague John Poyser sent these photographs of Upper Gloucester Place, Dorset Square, to me.

This building was the home of Georgina Annie Stephens Compton, who died on September 2, 1882.

Mary Ann Flack, signed Georgina Compton’s will on her behalf, three days earlier on August 29, 1882. Georgina Compton had become ill with Bright’s disease earlier that year. She had met with her solicitor, Mr. Parker, on various occasions to discuss making her will. She instructed him that she wished to leave 500 pounds to her father, and 250 pounds to her brother, with the residue of her estate Hospital for Sick Children in Great Ormond Street.

While Mr. Parker was away on holidays, Georgina Compton’s condition took a turn for the worse. She was in and out of consciousness. Dr. Hickman said that she “was capable of being roused and could speak, and did talk about her will.” He also said that he “could hardly say she was perfectly rational.”

Mr. Parker’s partner, Mr. Ponsford, drafted Georgina Compton’s will on the basis of Mr. Parker’s notes. The circumstances of the signing of the will were as follows:

On the 29th Dr. Tanner was called in that a fresh opinion might be taken the time when it was proposed to have the will executed. He stated that she opened her eyes, put out her hand, and smiled; that he consulted Dr. Palmer, rustled the will in front of her face, and thus roused her; that he said “This is your will. Do you wish this lady (Mrs. Flack) to sign it?” And that she replied, “Yes” Dr. Tanner added, “I have no doubt about it;” and he further added, “As far as I could judge, she understood what she did.”

The issue to be decided by a jury in Parker v. Felgate (1883), L.R. 8 P. D. 171 (Eng P.D.A.), was whether Georgina Compton was competent to make her will. There was no question that Georgina Compton had capacity to make a will when she gave her instructions to Mr. Parker. In light of her capacity when she gave instructions, what level of functioning was required for her to make a valid will at the time she answered “yes” when asked if she wished Mrs. Flack to sign on her behalf?

Sir J. Hannen, in his charge to the jury, set out the law on this point as follows:

This being the material evidence, the law applicable to the case is this: If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a goodwill, if executed by the testator, is that he should be able to think thus far, “I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.”

Further in his charge, Sir J Hannen said:

A person might no longer have capacity to go over the whole transaction, and take up the threat of business from beginning to the end, and think it all over again, but if he is able to say to himself, “I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;” it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgement that is sufficient.

The jury found that although Georgina Compton did not remember and understand the instruction she gave to Mr. Parker, nor could she have understood each clause of the will if it had been put to her, she was “capable of understanding, and did understand, that she was engaged in executing the will for which he had given instructions to Mr. Parker.”

Accordingly, the will was valid.

Mr. Poyser writes about Parker v. Felgate and the law of capacity to make a will in depth in his textbook Capacity and Undue Influence, published by Carswell in 2014.